Grafton agt. Remsen and others.

strument, or to whatever extent it may fail to carry out the intention of the parties to it, it is quite clear that there was no intentional misrepresentation, concealment or suppression of truth, on the part of any one connected with the transaction. Neither did the counsel who prepared the instrument fail in the exercise of professional skill, or any professional duty in the matter; the deficiencies which may be noted in the instru ment arose from the want of explicit instructions, and perhaps the superabundance of suggestions from those who naturally felt an interest in the lady's welfare.

Nothing, therefore, appears which would at all justify me in setting aside or rescinding this deed. But I am very decidedly of opinion-an opinion with which I was strongly impressed, throughout the argument—that the plaintiff executed this instrument under a misapprehension as to her power to revoke it. She imagined that by not putting it on record, she could annul it, and all its provisions, by the mere physical destruction of the paper on which it was written. She was rather encouraged in this idea, and it probably was the opinion of those who seemed to concur with her on the subject. If she had consulted the gentleman whom she had employed to prepare the instrument, he would no doubt have dispelled this mistake. But she held no communication whatever with him in any stage of the proceeding.

The two important events which she contemplated, and which were then so near at hand, seem to have diverted her mind from any attention to the dry concerns of law or business. She retained the impression, however, for a considerable length of time after her return from Europe, that as the instrument was not recorded, she could rescind it any time. She therefore intended substantially that she should reserve the power of revocation; a power very frequently reserved in instruments of this description. In effect, the circumstances presented in this case, are precisely the same as if she intended that the power of revocation should be expressly inserted in the deed, and that by some misapprehension, neglect or casualty, it was omitted.

Gilbert agt. Covell.

The complaint in the first place prays, that the instrument shall be declared "void, null and of no effect." This I refuse to grant; but as it also prays "for such further or other relief as may be agreeable to equity and good conscience," I will allow it to be reformed by inserting in it the power of revocation; which will subserve every purpose she has in view, and, at the same time will abundantly protect the trustees and all other persons who have derived rights, or have become entitled to any interests under it. The defendants are entitled to costs. The complaint in Mr. Grafton's suit is dismissed with costs.

SUPREME COURT.

ETHAN A. GILBERT, Appellant agt. RICHARD COVELL, Respondent.

An answer which does not set up any new matter, but merely denies conclusions of law, is insufficient and frivolous. And before the amendment of § 153 of the Code, (1857) the plaintiff was not confined to his remedy by motion; he might, in all cases, demur to an answer for insufficiency. But since the amendment of § 153, the plaintiff can only demur to an answer when the same contains new matter; leaving him to move for judgment where the answer is frivolous, or to raise the question at the trial.

Monroe General Term, December, 1857.

JOHNSON, WELLES and SMITH, Justices.

APPEAL from an order of special term, entered in August, 1856, overruling demurrers to 1st and 2d answers.

JOHN POMEROY, for appellant.

J. L. ANGLE, for respondent.

By the court-WELLES, Justice. The complaint is upon a

Gilbert agt. Covell.

promissory note made by the defendant to Simeon Alvord or bearer, for $300, dated October 1, 1855, payable one day from date, with interest. The complaint, after setting out the note, states that Alvord, before the commencement of the action, "sold, transferred and delivered the said promissory note to the above named plaintiff, who is now the lawful owner and holder of said note," and then alleges non-payment, &c.

The first answer denies, upon the information and belief of the defendant, that the plaintiff is the owner or holder of the

note.

In the second answer, the defendant "denies that he is, in any manner, indebted to the plaintiff upon the said note, or that he is so indebted to the amount stated in that behalf in said complaint."

The plaintiff demurs specially to each of these answers for insufficiency.

The answers are clearly insufficient. They neither of them deny any material fact stated in the complaint. The facts stated in the complaint, show a good cause of action, not one of which is denied by either answer, and therefore, on these demurrers, must be all taken as true. Neither does either answer set up new matter by way of defence or otherwise. They both consist only of denials of conclusions of law. The answers are clearly frivolous, and the plaintiff would have been entitled to judgment upon them, on motion under & 247 of the Code.

But the plaintiff was not confined to his remedy by motion. By 153 of the Code, as amended by the act of March 3d, 1855, (ch. 44, p. 54 of L. of 1855,) the plaintiff may, in all cases, demur to an answer for insufficiency.

If the answers are frivolous, they certainly are insufficient. But whether frivolous or not, no one can doubt their insufficiency; and even aside from the act of 1855, it was erroneous to render judgment in favor of the defendant, unless the answers were good in law. If the court at special term had been of opinion that demurrers to these answers were irregular, he should have either declined to hear them, or set them

The People ex rel. Smith agt. Flagg.

aside as irregular. By ordering judgment for the defendant upon them, he in effect, adjudged the answers sufficient.

The judgment of the special term should be reversed, and the plaintiff should have judgment upon the demurrers.

NOTE. By section 153 of the Code, as amended in 1857, a plaintiff is now only allowed to demur to an answer, when the same contains new matter, leaving the plaintiff to move for judgment where the answer is frivolous, or to raise the question at the trial.

COURT OF APPEALS

1

The People ex rel. EDWIN SMITH, Respondents agt. AZARIAH C. FLAGG, Appellant.

The common council of the city of New-York, have original authority to employ on behalf of the city, a surveyor to furnish copies of an original map, or to make new surveys, and furnish a new map of the city, or such parts thereof, as may be required.

And where the resolution of the common council calls for a certain number of copies of a certain map, with the "alterations and additions," to that date, and a new survey and map is furnished instead, which are recognized and accepted by the common council, and agreed to be paid for by resolution, it is equivalent to an original request, and creates a just debt for the amount, against the corporation.

The 12th section of the amended charter of 1853, requiring "all work to be done, and all supplies to be furnished for the corporation, involving an expenditure of more than $250, shall be by contract, founded on sealed bids, or on proposals made in compliance with public notice, for the full period of ten days; and all such contracts, when given, shall be given to the lowest bidder, with adequate security," does not apply to services which require in their performance specific knowledge or professional skill, such as the services of a lawyer, a physician, or surveyor.

By the amended charter of 1849, § 11, an executive department in the city government was constituted, denominated the " Department of Finance." It was made the duty of this department to settle and adjust all claims whatsoever, and all accounts whatsoever, in which the corporation is concerned as debtor or creditor. The comptroller was ordered to be the chief officer of this depart

The People ex rel. Smith agt. Flagg.

ment. By § 13 of the amended charter of 1853, an auditing bureau in the finance department was created, with an auditor of accounts as the chief officer. This bureau, it is declared, "shall audit, revise, credit and settle all accounts in which the city is concerned as debtor or creditor." And every claim against the corporation is to be certified from the auditing bureau to the comptroller with the same allowance, and the reasons for such allowance.

Therefore, it is not within the power of the common council to determine that a particular sum is due for services and disbursements, or to require the comptroller to draw his warrant for the payment of such sum.

A city surveyor, employed by the street commissioner to make a survey, shall be paid at the rate of $3.00 per day; and the further sum of $1.00 per day, may be allowed for an assistant, when necessary. (Ordinance organizing the departments of the city government, § 229.) By the 10th section of the amended charter, (1853,) it is declared, that “no additional allowance beyond the legal claim for any service, shall ever be allowed." This ordinance and statute take from the common council, the power of making any other allowance.

Appeal from the Second Judicial District.

On the 28th of February, 1855, a resolution of the common council of the city of New-York, was approved by the mayor, directing the street commissioner to furnish each member of the common council, to the mayor's office, and to the chambers of the boards of aldermen and councilmen, a copy of the map of wharves and piers of the North and East rivers, as originally drawn by Daniel Ewen, city surveyor, and embracing the alterations and additions to date.

The relator was employed by the street commissioner, in April, 1855, no advertisement having been made for proposals, and no bids received for doing the work.

The relator made a complete survey of all the wharves and piers on the North and East rivers.

On the 26th of June, 1856, a resolution was passed by the common council, directing the comptroller of the city of NewYork, (which office appellant then held,) to draw his warrant in favor of relator for $1,250, which the appellant refused to do.

The justice sitting at the special term of the supreme court, second district, ordered a peremptory mandamus to issue against Flagg, (the appellant,) and the general term of that court affirmed the order